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Balbir Sharma C-67A, Yadav Nagar, Sameypur, Delhi. Vs. Income-tax Officer, Ward 40(2), New Delhi.
February, 24th 2015

                DELHI BENCH "A" NEW DELHI

                         ITA no. 1043/Del/2013
                         A.Y. 2003-04
Balbir Sharma                  Vs. Income-tax Officer,
C-67A, Yadav Nagar,                 Ward 40(2), New Delhi.
Sameypur, Delhi.

( Appellant )                         ( Respondent )

            Appellant  by :           Shri R.S. Singhvi
            Respondent by :           Shri B.R.R. Kumar Sr. DR

            Date of hearing     :     17-02-2015
            Date of order       :     ______-02-2015.



      This appeal, preferred by the assessee, is directed against the order
dated 18-12-2012, passed by the CIT(Appeals)-XXX, New Delhi, relating
to A.Y. 2003-04.

2.    Brief facts are that the assessee in the relevant assessment year was in
receipt of salary income from Ministry of Sports & Youth Affairs and was
also deriving some agricultural income. He had filed his return of income
declaring income of Rs. 1,71,000/-. The AO observed that intimation dated
26-3-2009 regarding tax evasion being made by the assessee, was received
from the office of the DIT(Inv.), New Delhi relating to search conducted by

CBI on the assessee on 10-7-2006 and unearthed receipt of huge
unaccounted money. The assessdee's case was, accordingly, reopened and
addition u/s 68 of Rs. 25 lacs was made.

3.    The assessee preferred appeal before the ld. CIT(A). However, ld.
CIT(A) dismissed the appeal for non-prosecution as assessee had sought
adjournments on various dates as mentioned in the ld. CIT(A)'s order.
The assessee has, inter alia, taken following grounds:

      "2. The learned CIT(A) has erred in law and on facts in
      stating that the appellant is not interested in availing the
      opportunity of being heard.

      3.    The learned CIT(A) has erred in law and on facts in
      making averment that the appellant is lazy and non-cooperative
      and that the AO should take cohesive action in collecting taxes
      from such lazy appellant."

4.    We have heard rival contentions and perused the relevant material available
on record. The ld. CIT(A) vide his impugned order has dismissed the appeal filed
by the assessee, in limine, for want of prosecution qua the assessee, by observing
as under:
      3. I have considered the grounds of appeal taken by the
      appellant and also considering the non cooperation on the part
      of the appellant. It seems that the assessee is not interested in
      deciding his appeal. The appeal filed by the appellant is liable
      to be dismissed for non-prosecution and also on merits
      as the appellant has not filed any documentary evidence
      regarding his claim in the appeals. The appeals of the assessee
      are dismissed for non prosecution and also non availability of
      any submissions along with evidences, in support of grounds
      taken by him. I find support from the decision in the

      following cases:-

      1. CIT v . Focus Estates P .Ltd. v. 286 ITR 410 (2006)
      (Delhi High Court)-Held that Rule 25 of the Appellate Tribunal
      Rules,1963, empowers the Tribunal to dispose of an appeal on
      merits after hearing the appellant, if on the date on which the
      matter is called for hearing, the respondent does not appear in
      person or through an authorized representative

      2. Annapuma Agencies vs. Dy.CIT, Circle-l l , Aayakar Bhavan
         Ahmedabad- (20II-TIOL-645-ITAT-AHM).

      "Held that whether failure to attend proceedings before AO
      attracts penalty for non-appearance. The assessee failed to
      comply with the statutory notices. Whatever explanation was
      given before the Id.CIT(A) was not substantiated through any
      material on record. We, therefore, do not find any justification
      to interfere with the order of the id.CIT(A). -We confirm the
      same and dismiss the appeal of the assessee."

      The appeal filed by the assessee is dismissed for non
      prosecution and also non availability of any submissions along
      with evidences in support of grounds taken by him"

5.    In our considered opinion the order passed by the learned CIT(Appeals)
cannot be accepted in the eye of law. The ld. CIT(A) has dismissed assessee's
appeal in limine for want of prosecution, without touching the issues raised before
him in the grounds of appeal. If the learned CIT(A) wanted to dispose of the
appeal ex parte, qua the assessee, being first appellate authority, he was duty
bound to dispose of the issues raised before him on merits. In any view of the
matter, the order of the learned CIT(A) is set aside and the matter is restored back
to the file of ld. CIT(A) to him with the direction to pass a reasoned order, on the

grounds of appeal raised before him, in accordance with law, of course, after
affording reasonable opportunity of being heard to the assessee. We order
6.    In the result, assessee's appeal stands allowed for statistical purposes only.

Order pronounced in open court on 20-02-2015.

       Sd/-                                          Sd/-
 (H.S. SIDHU )                                ( S.V. MEHROTRA )
JUDICIAL MEMBER                               ACCOUNTANT MEMBER
Dated: 20-02-2015.
MP: Copy to :
   1. Assessee
   2. AO
   3. CIT
   4. CIT(A)
   5. DR
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